The Nation

Libby juror dismissed; panel of 11 continues deliberating

She unintentionally came into contact with information about the case, says the judge.

WASHINGTON — A juror was dismissed Monday from hearing the perjury and obstruction case against I. Lewis "Scooter" Libby, but the judge allowed the panel to continue deliberations with 11 members.

U.S. District Judge Reggie B. Walton discharged the juror, a former art museum curator, after the woman acknowledged being exposed to information about the case during the weekend, when court was not in session.

Walton did not detail the nature or extent of the contacts, which he said were brought to his attention by the jury foreperson. He expressed concern to the lawyers that other jurors might have been tainted, but after interviewing each, the judge concluded the remaining seven women and four men could continue to serve.

"She did have contact with information related to this case," Walton said in court. "It wasn't intentional on her part. It was a misunderstanding of what I had been telling her throughout the trial."

The incident was one of the few signs of life from the jury since it began deliberations Wednesday. Walton called the other jurors into court Monday, and underscored that they should avoid reading or hearing anything about the case during the trial.

Federal court rules permit the judge to move forward with the smaller panel, although the government prosecutor urged him Monday to tap one of two alternate jurors still available for a full 12-member jury.

Special Prosecutor Patrick J. Fitzgerald said the smaller panel put the trial on "dangerous territory" if another juror were to become ill or be dismissed because of media exposure.

But Walton expressed concern that adding a juror would require the panel to restart deliberations. "I just don't think it would be appropriate to throw away those 2 1/2 days of deliberations," he said. "I don't have anything to suggest that this jury is anything but conscientious and can continue."

"It's not like by going to 11 we're on the cliff of some mistrial," Wells told the judge.

One observer said the lawyers' opposing views on the size of the jury suggested each was seeking a tactical advantage. "At the very least, it probably means that Fitzgerald liked the alternates and Wells did not," said Guy Singer, a Washington lawyer and former Justice Department prosecutor.

The dismissed juror had demonstrated an independent streak, which could have assisted the defense.

When the trial was about to resume on Valentine's Day, jurors paraded into Walton's courtroom with red shirts marked with white hearts. The only one to abstain from the sartorial statement was the former curator, who worked at the Metropolitan Museum of Art in New York.

A conviction would require that all jurors find guilt beyond a reasonable doubt; the woman's lack of participation suggested she might not be inclined to go along with the pack.

"Typically the defense would not be happy about losing a potential holdout juror," Singer said.

The jury deliberated Monday and is to resume this morning.

Libby, 56, once Vice President Dick Cheney's chief of staff and national security advisor, is charged with covering up his participation in the events leading to the summer 2003 disclosure of then-CIA operative Valerie Plame's identity. Plame's husband, former envoy Joseph C. Wilson IV, accused the Bush administration of twisting prewar intelligence in an opinion article for the New York Times a few days before his wife's identity was publicly revealed.